II 

112TH CONGRESS 

1ST SESSION S. 785 

To require that the Federal Government procure from the private sector 

the goods and services necessary for the operations and management 

of certain Government agencies, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

APRIL 12, 2011 

Mr. THUNE (for himself, Mr. INHOFE, Mr. ROBERTS, Mr. ISAKSON, and Mr. 

BARRASSO) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs 

A BILL 

To require that the Federal Government procure from the 

private sector the goods and services necessary for the 

operations and management of certain Government agencies, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Freedom from Govern5 ment Competition Act’’. 

6 SEC. 2. FINDINGS. 

7 Congress makes the following findings: 


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1 (1) Private sector business concerns, which are 

2 free to respond to the private or public demands of 

3 the marketplace, constitute the strength of the 

4 United States economic system. 

5 (2) Competitive private enterprises are the most 

6 productive, efficient, and effective sources of goods 

7 and services. 

8 (3) Unfair Government competition with the 

9 private sector of the economy is detrimental to the 

10 United States economic system. 

11 (4) Unfair Government competition with the 

12 private sector of the economy is at an unacceptably 

13 high level, both in scope and in dollar volume. 

14 (5) Current law and policy have failed to ad15 dress adequately the problem of unfair Government 

16 competition with the private sector of the economy. 

17 (6) It is in the public interest that the Federal 

18 Government establish a consistent policy to rely on 

19 the private sector of the economy to provide goods 

20 and services necessary for or beneficial to the oper21 ation and management of Federal agencies and to 

22 avoid unfair Government competition with the pri23 vate sector of the economy. 

24 SEC. 3. DEFINITIONS. 

25 In this Act, the term ‘‘agency’’ means— 


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1 (1) an executive department as defined by sec2 tion 101 of title 5, United States Code; 

3 (2) a military department as defined by section 

4 102 of such title; and 

5 (3) an independent establishment as defined by 

6 section 104(l) of such title. 

7 SEC. 4. PROCUREMENT FROM PRIVATE SOURCES. 

8 (a) POLICY.—In the process of governing, the Fed9 eral Government should not compete with its citizens. The 

10 competitive enterprise system, characterized by individual 

11 freedom and initiative, is the primary source of national 

12 economic strength. In recognition of this principle, it has 

13 been and continues to be the general policy of the Federal 

14 Government— 

15 (1) to rely on commercial sources to supply the 

16 products and services the Government needs; 

17 (2) to refrain from providing a product or serv18 ice if the product or service can be procured more 

19 economically from a commercial source; and 

20 (3) to utilize Federal employees to perform in21 herently governmental functions (as that term is de22 fined in section 5 of the Federal Activities Inventory 

23 Reform Act of 1998 (Public Law 105–270; 31 

24 U.S.C. 501 note)). 


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1 (b) GENERAL RULE.—Except as provided in sub2 section (c) and notwithstanding any other provision of law, 

3 each agency shall obtain all goods and services necessary 

4 for or beneficial to the accomplishment of its authorized 

5 functions by procurement from private sources. 

6 (c) EXEMPTIONS.—Subsection (b) shall not apply to 

7 an agency with respect to goods or services if— 

8 (1) the goods or services are required by law to 

9 be produced or performed, respectively, by the agen10 cy; or 

11 (2) the head of the agency determines and cer12 tifies to Congress in accordance with regulations 

13 promulgated by the Director of the Office of Man14 agement and Budget that— 

15 (A) Federal Government production, man16 ufacture, or provision of a good or service is 

17 necessary for the national defense or homeland 

18 security; 

19 (B) a good or service is so inherently gov20 ernmental in nature that it is in the public in21 terest to require production or performance, re22 spectively, by Government employees; or 

23 (C) there is no private source capable of 

24 providing the good or service. 


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1 (d) METHOD OF PROCUREMENT.—The provision of 

2 goods and services not exempt by subsection (c)(1) or 

3 (c)(2) shall be performed by an entity in the private sector 

4 through— 

5 (1) the divestiture of Federal involvement in the 

6 provision of a good or service; 

7 (2) the award of a contract to an entity in the 

8 private sector, using competitive procedures, as de9 fined in section 152 of title 41, United States Code, 

10 and section 2302 of title 10, United States Code; 

11 (3) converting an activity to performance by a 

12 qualified firm under at least 51 percent ownership 

13 by an Indian tribe, as defined in section 4(e) of the 

14 Indian Self-Determination and Education Assistance 

15 Act (25 U.S.C. 450b(e)), or a Native Hawaiian Or16 ganization, as defined in section 8(a)(15) of the 

17 Small Business Act (15 U.S.C. 637(a)(15)); or 

18 (4) conducting a public-private competitive 

19 sourcing analysis in accordance with the procedures 

20 established by the Office of Management and Budg21 et and determining that using the assets, facilities, 

22 and performance of the private sector is in the best 

23 interest of the United States and that production or 

24 performance, respectively, by the private sector pro25 vides the best value to the taxpayer. 


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1 (e) CONTRACTED ACTIVITIES.—The head of an agen2 cy may utilize Federal employees to provide goods or serv3 ices previously provided by an entity in the private sector 

4 upon completion of a public-private competitive sourcing 

5 analysis described in subsection (d)(4), and after making 

6 a determination that the provision of such goods or serv7 ices by Federal employees provides the best value to the 

8 taxpayer. 

9 (f) REGULATIONS.—The Director of the Office of 

10 Management and Budget shall promulgate such regula11 tions as the Director considers necessary to carry out this 

12 section. In promulgating such regulations, the Director 

13 shall assure that any State or territory, or political sub14 division of a State or territory, complies with the policy 

15 and implements the requirements of this section when ex16 pending Federal funds. 

17 SEC. 5. STUDY AND REPORT. 

18 The Director of the Office of Management and Budg19 et, in conjunction with the Comptroller General of the 

20 United States, shall carry out a study to evaluate the ac21 tivities carried out in each agency, including those identi22 fied as commercial and inherently governmental in nature 

23 in the inventory prepared pursuant to the Federal Activi24 ties Inventory Reform Act (Public Law 105–270; 31 

25 U.S.C. 501 note) and shall transmit a report to the ConVerDate Mar 15 2010 00:55 Apr 13, 2011 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S785.IS S785

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1 gress prior to June 30 of each year. The report shall in2 clude— 

3 (1) an evaluation of the justification for ex4 empting activities pursuant to section 4(c); and 

5 (2) a schedule for the transfer of commercial 

6 activities to the private sector, pursuant to section 

7 4(d), to be completed within 5 years after the date 

8 on which such report is transmitted to the Congress. 

Æ 


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